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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Albion Hotel (Freshwater) Ltd v Silva & Anor  EWCA Civ 1784 (25 November 2002)
Cite as:  EWCA Civ 1784
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
Monday, 25th November 2002
B e f o r e :
|ALBION HOTEL (FRESHWATER) LTD||Applicant|
|SILVA & ANOTHER||Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was unrepresented.
Crown Copyright ©
Monday, 25th November 2002
"We have considered with very great care the appropriate Order to make. In many, if not in most cases, where there has been a procedural defect as occurred in this case, the proper course will be to send the case to a differently constituted Employment Tribunal for rehearing. However, in the particular circumstances of the present case, we are not minded to make such an Order. As we have mentioned, Albion Hotels is insolvent. It is unlikely that Mr and Mrs Silva will see very much, if any, of their compensation. In those circumstances we are most reluctant to put the parties to the expense of a re-hearing, or indeed, to impose such a re-hearing on an Employment Tribunal, when the results seem likely to be largely academic. In those circumstances and exceptionally, we shall remit the matter to the Employment Tribunal to enable the Tribunal to hear submissions on the three authorities that were not referred to by the parties, and upon any findings of fact, that either party may wish the Tribunal to make in determining the question whether Mr and Mrs Silva asserted that Albion Hotels had infringed a right as opposed to their merely asserting the statutory right."
"... unless in the view of the learned Regional Chairman factors emerge which render such an arrangement impracticable or impossible in which case the matter be remitted to be heard by a differently constituted Tribunal as directed by the Regional Chairman."
"It is clear that what was intended by the use of the words `impracticable' or `impossible' was the circumstance which does arise from time to time, where it is impossible or impracticable for the same Tribunal to be reconstituted. It happens, for example, that for reasons such as retirement, unfortunately sometimes death and also sometimes other arrangements that a Tribunal cannot be reconstituted within a reasonable period of time."
"It seems to us, and we hope that we are not being unduly cynical, that what Mr Nolan may have had in mind was that, if his appeal failed he would then seek to appeal on a further ground; namely the Chairman's bias."